THE REGISTERED INCORPORATED TRUSTEES TOTAL COOPERATIVE THRIFT & CREDIT SOCIETY & ANOR v. MAZI OBI ADINDU
CITATION: (2011) LPELR-CA/L/649/10
   
new OTHER CITATIONS:
Nigerian Coat of Arms
In The Court of Appeal
(Lagos Judicial Division)
On Friday, the 3rd day of June, 2011
Suit No: CA/L/649/10
 
Before Their Lordships
 
   
IBRAHIM MOHAMMED MUSA SAULAWA
....... Justice, Court of Appeal
JOHN INYANG OKORO
....... Justice, Court of Appeal
ADAMU JAURO
....... Justice, Court of Appeal
 
 
 Between
1. THE REGISTERED INCORPORATED TRUSTEES TOTAL COOPERATIVE THRIFT & CREDIT SOCIETY
2. MR. K. A. DISU PRESIDENT, TOTAL COOPERATIVE THRIFT & CREDIT SOCIETY
Appellants
 
 
 And
       
MAZI OBI ADINDU Respondents
 
     
  RATIO DECIDENDI  
     
1
PRACTICE AND PROCEDURE - ISSUANCE OF A WRIT: Whether a claimant has the duty of issuing a writ of summons
 
 
"The duty to issue writ of summons is not that of the claimant but the court, so where the claimant files his necessary papers and paid the appropriate fees, the rest is for the court to conclude. See Ogbuanyinya v. Okudo (1990) 4 NWLR (Pt.146) 551 at 560." Per JAURO J.C.A(P. 16, Paras. A-B) - read in context
 
     
2
PRACTICE AND PROCEDURE - OMISSION OF THE REGISTRY: Whether a claimant can be held liable for the omission or negligence of the registrar
 
 
"The failure to reflect a suit number on the copies of the originating processes served on the appellants is indeed an omission on the part of the registry. It will be unfair to hold the claimant responsible for the omission or negligence of the registry when he has done what the law requires of him to commence an action. See Dasofunjo v. Oni (1966) 2 All NLR 291, Duke v. Akpabuyo Local Govt. (2005) 12 SC (Pt.1) 1."Per JAURO J.C.A(P. 16, Paras. B-D) - read in context
 
     
3
PRACTICE AND PROCEDURE - SETTING ASIDE OF ORIGINATING PROCESS: What a party who intends to set aside an originating process must do
 
 
"Order 5 Rule 2(1) of the High Court of Lagos State (Civil procedure) Rules 2004 made provision for application to set aside any step taken in proceedings, and it provides thus: "2(1) An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity" A party or defendant wishing to set aside any originating process for any defect is expected to act timeously and do the following: (a) Enter an appearance on protest, or (b) Enter a conditional appearance, and (c) Then file a motion in the court, the trial court seized of the matter to set aside the writ or a originating summons on the ground complained of. See the cases of Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt.109) 250, Skenconsult Ltd v. Ukey (1981) 1 SC 6, Chidobi v. Ujieze (1994) 2 NWLR (pt.328) 554, Saude v. Abdullahi (1989) 7 SC (pt.II) 116".Per. JAURO J.C.A(Pp. 14-15, Paras. G-D) - read in context
 
     
     
 

ADAMU JAURO J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Lagos State High Court delivered on 27th April, 2010 in suit number LD/1228/09, coram M. A. Dada, J.

The facts culminating in this appeal can be briefly summarized thus. The respondent as claimant in the court below commenced the action forming this appeal by a writ of summons dated 28th July, 2009 and accompanied by a statement of claim and other court processes, seeking for the following reliefs:-

"(1). A declaration that the Claimant is the rightful owner of 4 (four) plots of land out of the parcel of land owned by the Defendants situate, lying and being at Kajola in Ibeju Local Government Area of Lagos State.

(2). An order of specific performance compelling and directing the Defendants to yield up the said 4 (four) plots of land paid for by the Claimant, put the Claimant in peaceable possession and

occupation of the said 4 (four) plots and execute all relevant and necessary documents evidencing the transaction between the Claimant and the Defendants.

(3). An order or perpetual injunction restraining the Defendants, their servants, agents, privies, representatives, nominees or any person howsoever called from farther interfering with the Claimant immediately upon yielding up of the said 4 (four) plots to the Claimant by the Defendants and the fulfillment of Claim (2) Above.

ALTERNATIVELY

(4). An order of this Honourable Court directing the Defendants to refund the sum of N1,200,000.00 (One Million Two Hundred Thousand Naira) to the Claimant being the sum paid by the Claimant to the Defendants for 4 (four) plots of land at Kajola in lbeju Local Government Area of Lagos State and which said 4 (four) plots the Defendants refused, failed and or neglected to deliver to the Claimant for possession and occupation.

(5). 22% interest on the said sum of N1,200,000.00 (One Million Two Hundred Thousand Naira) from 4/12/2003 until the day of judgment and thereafter until full and final satisfaction of the judgment debt.

(6). N50,000,000.00 (Fifty Million Naira) general Damages for the Defendants, fraudulent breach of contract and unlawful acquisition of Claimant's plots of land situate, lying and being at Kajola in Ibeju Local Government Area of Lagos State.

(7). 10% interest on the above sum from the date of judgment of this Honourable Court till the payment of the said sum.

(8). N200,000.00 (two Hundred Thousand Naira) being solicitors fee for filing and prosecuting this action for and on behalf of the Claimant."

On 29th July, 2009 two copies of the writ of summons, statement of claim and other attached court processes meant for service on the appellants as 1st and 2nd defendants, were served on the 2nd appellant. Subsequently the respondent filed and served the appellants a motion on notice for default judgment dated 13th January, 2010.

The appellants thereafter filed a motion on notice dated 13th February, 2010 praying for the setting aside of the writ of summons and the accompanying court processes on the ground that the said court processes had no suit number endorsed on them. The parties filed and exchanged written addresses in respect of the application and same adopted on 27th April, 2010.

In a ruling delivered the same day after the adoption of the written addresses, the trial court refused the application to set aside the originating processes and the service of same on the defendants and held thus:

"I have considered the application before the court wherein the Defendant/Applicant is challenging the service of the Claimant's originating processes on him on the ground that they do not bear the courts suit number as required by the Rules. Order 5 rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules 2004 provides that "An Application to set aside for irregularity in any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying had taken any fresh step after becoming aware of the irregularity."

"The question therefore that arises is has the Applicant brought this application within a reasonable time? The proof of service of the Claimant's processes shows that the Defendant/Applicant was served the said Initiating processes on 29th July 2009 whereas this application was filed on 19th February, 2010 i.e. about 7 months after. The Defendant is ordinarily entitled to 42 Days to file a Statement of Defence if Any and the reasonable thing would be for them to file this application within 42 days and anything outside the 42 days will in any view become unreasonable. By virtue of Order 5 rule 1(2) the said non insertion of the suit number is o mere irregularity which is easily cured by the court or any of the parties moreso as the Defendant has not been mistaken as can be seen on his motion paper whereon the suit number is clearly endorsed. The address and phone numbers of Claimant's Counsel are clearly endorsed on the processes filed and served on the Defendant. The responsibility of endorsing. The suit number on the originating process is not that of the Claimant it is the Registry of the court that is endowed with the responsibility and this irregularity cannot therefore in all good conscience be visited on the Claimant.

The application therefore has been brought malafide, is lacking in merit and is hereby dismissed.

I so hold."

Piqued and distressed by the aforementioned ruling, the defendants lodged in this appeal anchored on two grounds of appeal pursuant to a notice of appeal dated and filed on 4th May, 2010. The two grounds of appeal shorn of their particulars are hereby reproduced thus:

"GROUNDS OFAPPEAL

"(1). The learned trial Judge erred in law when she declined to set aside the copies of the Writ of Summons and accompanying court processes served on the 1st & 2nd Defendants herein and/or the purported service of the said processes on the 1st & 2nd Defendants.

(2). The learned trial judge misdirected herself in law when she held that the 1st & 2nd Defendants, application herein to set aside the service of the originating processes on them was not made within a reasonable time and thereby came to a wrong decision when she declined the said application".

In line with the Rules of this court, the parties filed and exchanged their respective briefs of argument. Mr. B. E. Mbagwu leading Mrs. C. E. Andy-Eke for the appellants adopted and relied on the appellants brief dated and filed on 2nd September, 2010. Learned counsel urged the court to allow the appeal and set aside the ruling of the lower court delivered on 27th April, 2010 and grant the appellants application in the lower court' Mr. A. B. ogunsusi for the respondent adopted and relied on the respondents brief dated 6th October, 2010 and filed 7th October, 2010 in urging the court to dismiss the appeal.

The appellants in their brief of argument identified a lone issue as apt and germane for determination, namely:-

"Whether the learned trial judge was right to refuse the appellants application to set aside the service of the originating processes of this suit on them".

The respondent on his part, nominated two issues for determination as follows:-

"(a). Whether under the High Court of Lagos State (Civil procedure) Rule 2009 (sic) 2004. The Writ of Summons and other Court processes served on the Appellants in the lower court are invalid and ought to be set aside by the learned trial judge upon the application of the Appellants.

(b). Whether Appellants brought their application to have the Writ Summons and other front loaded court processes served on them at lower court set aside within reasonable time having regards to the facts in this appeal."

For the resolution of this appeal the issue for determination nominated by the appellant will be adopted, namely:-

"Whether the learned trial judge was right to refuse the appellants application to set aside the service of the originating processes of this suit on them".

The learned counsel for the appellant stated that the writ of summons, statement of claim and accompanying court processes served on the 1st and 2nd appellants as defendants had no suit number disclosed or reflected on any of them. Learned counsel submitted that where the writ of summons and the originating processes served on the defendants do not bear any suit number they are invalid and defective. In support of this contention reference was made to order 6 Rules 3 and 4 and order 45 Rule 9 of the High court of Lagos (civil Procedure) Rules 2004. Learned counsel further submitted that in circumstances of this nature, the appellants have a right to apply to set aside the defective originating processes as irregular. In support of this contention, reference was made to order 5 Rules 1 and, 2 of the High court of Lagos (civil Procedure) Rules 2004.

Learned counsel argued that it was wrong for the trial court to have held that the application was not brought within a reasonable time. As to what amounts to a reasonable time, reference was made to the following cases: Effiom v. State (1995) 1 NWLR (pt.373) 507 at 635 - 636, Hamza v. Lawan (1998) 10 NWLR (Pt. 571) 667 at 686 and Buhari v. Obasanjo (2003) 17 NWLR (pt. 423 at 4934. to 495D.

Learned counsel further argued that apportioning blame on the court registry for failure to insert the suit number is also not a ground for a refusal to set aside the defective writ of summons and other originating processes. In support of this view, reference was made to the cases of Broad bank (Nig) Ltd v. Alh.  Olayiwola & Sons Ltd (2001) 6 NWLR (Pt.710) 742 at 758F to 759B; Chidobi v. Ujieze (1994) 2 NWLR (pt.328) 554 at 564 H to 56D: In concluding, learned counsel urged the court to allow the appeal by setting aside the ruling appealed against, and granting their application dated 19th February, 2010 by setting aside the service on them of the originating processes in the suit.

Learned counsel for the respondent stated that the appeal is lacking in merit and solely intended to delay the hearing of the suit in the lower court. Learned counsel submitted that lower court was right in refusing the application, as the attitude of courts these days is to shun away from technicalities in favour of substantial justice. In support of this contention reference was made to the case of Amaechi v. INEC (2008) 1 SC (Pt.1) 36 at 108.   Learned counsel submitted that the duty and responsibility of the respondent in respect of issuance of originating processes are contained in Order 6 Rules 1 and 2 of the High court of Lagos state (civil procedure) Rules 2004. Learned counsel argued that by virtue of Order 6 Rule 3 of the same Rules, the insertion of a suit number on the originating processes is purely the responsibility of the registrar and the administrative arm of the lower court. Learned counsel contended that the originating processes were signed and sealed by the registrar and served on the appellants by the bailiff from the administrative arm of the lower court. Learned counsel argued that the omission complained about is purely an administrative error and a mere irregularity and the respondent should not be held responsible for the lapses of the registry of the lower court. In support of this view, reference was made to the case of Mr. G. O. Duke v. Akpabuyo Local Govt. (2005) 12 SC (pt.1) 1 at 12.

Learned counsel contended that court processes are easily traceable even in the absence of a suit number and that the appellants failed to act within a reasonable time as envisaged by Order 5 Rule 2 (1) of the High Court (Civil procedure) Rules 2004. In support, reference was made to the case of Saude v. Abdullahi (1989) 7 SC (pt.II) 116 at 157. Learned counsel contended that the word "documents" referred to in Order 45 Rule 9 does not include any originating processes under Order I Rule 2 (3) of the High Court Rules (Lagos). Learned counsel argued that the omission of the suit number on the processes served on the appellants does not invalidate the processes as the original of the said processes in the lower court's file have the alleged omitted suit number. Learned counsel further submitted that the omission is a mere irregularity which does not affect the validity of the court processes or their service. In support, further reference was made to the case of Duke v. Akpabuyo Local Govt. (supra) and U.T.C. Ltd v. Chief pamotie (1989) 3 SC (Pt.1) 79 at 137. In concluding, learned counsel urged the court to dismiss the appeal and affirm the decision of the lower court.

The narrow compass within which this appeal oscillates, is the refusal of the lower court to set aside the originating processes and their service on grounds of lack of suit number. By way of prologue, it must be stated that the originating processes served on the appellants as defendants in the lower court had no suit number endorsed on them. See pages 52 to 77 of the record of appeal. It must however be added that the originals of the writ of summons and statement of claim in the lower courts file and the certified true copy in the record of appeal G4ges 1-8) had suit numb LD/1228/09 endorsed on them.

The duties expected of a claimant in relation to the issuance of an originating process have been outlined in order 6 Rules I and 2 of the High court of Lagos State (civil Procedure) Rules 2004,and hereby reproduced thus:

"1. Originating process shall be prepared by a claimant or his Legal practitioner, and shall be clearly printed on Opaque A4 paper of good quality.

2(1) The Registrar shall sear every originating process whereupon it shall be deemed to be issued

(2) A claimant or his Legal practitioner shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.

(3) Each copy shall be signed by the Legal Practitioner or by a claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed".

Once a claimant discharges the duties enumerated above, the remaining duties fall within the responsibility of the registrar or the administrative arm of the lower court. The duties of the registrar have also been spelt out in Order 6 Rules 3 and 4 of the same Rules and are also reproduced:

"3. The registrar shall after sealing an originating process, file it and note on it the date of filing and the number of copies supplied by a claimant or his Legal Practitioner for service on the defendants. The Registrar shall then make an entry of the filing in the cause book and identify the action

4. The Registrar shall promptly arrange for personal service on each defendant a copy of the originating process and accompanying documents duly certified as provided by Rule 2 (3) of this order".

As can be seen from Rule 3 above, the numbering or the insertion of suit number on processes is the responsibility of the registrar not the claimant. Any action or suit instituted in the courts must have a suit number. Indeed the original file copy of the originating process in the case at hand as earlier stated had Suit No. LD/1228/09 endorsed thereon. Unfortunately however, the copies served on the appellants as defendants had no any suit number reflected on them. The said processes were served on the defendants on 29th July, 2009. See the affidavit of service on page 22 of the record and incidentally the affidavit of service on page 22hadsuit number LD/1228/09 endorsed on it. The appellants as defendants filed their motion to set aside the originating processes on 19th February, 2010. see pages 4g to g2 of the record.

order 5 Rule 2(1) of the High Court of Lagos State (Civil procedure) Rules 2004 made provision for application to set aside any step taken in proceedings, and it provides thus:

"2(1) An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity"

A party or defendant wishing to set aside any originating process for any defect is expected to act timeously and do the following:

(a) Enter an appearance on protest, or

(b) Enter a conditional appearance, and

(c) Then file a motion in the court, the trial court seized of the matter to set aside the writ or a originating summons on the ground complained of. See the cases of Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt.109) 250, Skenconsult Ltd v. Ukey (1981) 1 SC 6, Chidobi v. Ujieze (1994) 2 NWLR (pt.328) 554, Saude v. Abdullahi (1989) 7 SC (pt.II) 116
.



In the instant case, the appellants neither entered a conditional appearance or appearance on protest but only filed their motion to set aside seven months after being served the originating processes. After seven months of waiting' can the appellants be said to have acted timeously or within a reasonable time as envisaged by the Rules? The answer obviously is in the negative.

As earlier stated the originals of the originating processes in the courts file had a suit number endorsed on them, hence the action as commenced cannot be said to be without a suit number. order 5 Rule 1 of the same Rules cannot therefore be said to have been breached. The case of Broad Bank Ltd v. Olayiwola & Sons Ltd (Supra) is therefore inapplicable. The duty to issue writ of summons is not that of the claimant but the court, so where the claimant files his necessary papers and paid the appropriate fees, the rest is for the court to conclude. See Ogbuanyinya v. Okudo (1990) 4 NWLR (Pt.146) 551 at 560.



The failure to reflect a suit number on the copies of the originating processes served on the appellants is indeed an omission on the part of the registry. It will be unfair to hold the claimant responsible for the omission or negligence of the registry when he has done what the law requires of him to commence an action.

See Dasofunjo v. Oni (1966) 2 All NLR 291, Duke v. Akpabuyo Local Govt. (2005) 12 SC (Pt.1) 1.




Interestingly, I observed that the motion to set aside filed by the appellants in the lower court had suit number LD/1228/09 endorsed on it. The omission therefore is an irregularity which can be remedied by Order 5 Rule 1(2) of the same Rules as rightly held by the lower court. The sole issue for determination is resolved against the appellants.

The ruling of the lower court is unimpeachable and I do not see any reason for interfering with same. The appeal is therefore lacking in merit and substance and is hereby dismissed. The ruling of the lower court dated 27th April, 2010 is hereby affirmed. There will be no order as to costs.

  



IBRAHIM MOHAMMED MUSA SAUIAWA, J.C.A.: I had read both the records of appeal and the draft of the lead judgment of my learned brother, the Hon. Adamu Jauro, JCA. Both the reasoning and conclusion reached in the lead judgment are in accord with mine. I therefore adopt them as mine.

Consequently, having satisfied myself that the instant appeal lacks any substantial merits, same is hereby dismissed by me. I affirm the ruling of the court below, dated April 27, 2010.

No order as to costs.





JOHN INYANG OKORO, J.C.A.: I was obliged before now a copy of the Judgment just delivered by my learned brother, Jauro, JCA and I agree that this appeal lacks merit and ought to be dismissed. My learned brother has meticulously and quite efficiently dealt with all the salient issues submitted for the determination of this appeal. Both the reasoning and conclusion of my learned brother are in accordance with my position herein. Therefore, I adopt the lead Judgment as mine. I abide by all the consequential orders made therein. I also make no order as to costs.

         
Appearances
             
B.E. Mbagwu Esq with Mrs. c. E. Andy-Eke For the Appelants
             
A. B. Ogunsusi Esq. For the Respondents